Category: Brexit

Biden, Brexit, and the politics of process

24th November 2020

Process is the friend of President-elect Joseph Biden.

As long as the States duly certify their votes, and the Electoral College then duly votes in accordance with those certifications, and Congress then duly accepts the Electoral College result, there is little Biden really needs to do so as to become President of the United States on 20 January 2021.

Unless something extraordinary happens, Donald Trump will cease to become President on 20th January 2021 by automatic operation of the Constitution of the United States.

Process is his friend.

There is, of course, still litigation and political pressure from the Trump campaign.

(And it is testament to the lack of confidence many have in the integrity and independence of the currently composed Supreme Court of the United States that many can easily imagine at least two or three of the Justices voting in favour of the side of Trump in any election case before that court, regardless of the merits of that case.)

None of the current litigation, however, really adds up.

Indeed, the lawyering in some of the cases brought by the Trump campaign has been unimpressive.

And even if each of these cases are taken at their highest, it is not conceivable that it would ‘flip’ the result in a single State, let alone the entire presidential election.

Understandably, many are still anxious as to whether Trump will really go, and are concerned that some grand litigation trick may keep him in the White House after 20 January 2021.

After all, many strange things have happened in the United States (and the United Kingdom) since 2016.

But here it looks like process will prevail.

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Process is the enemy – the negation – of the disruptive approach to politics of Trump and Bannon in the United States and of Johnson and Cummings in the United Kingdom.

That approach to politics prioritises mobilising a political base so as to enable those in political power to govern without checks and balances.

And as such, both politics and policy becomes a sequence of gestures, expediences and contrivances.

Process is an alien concept to this approach of constant disruption.

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Take, for example, Brexit.

In approaching the negotiations of the exit agreement and then of the subsequent relationship on trade, the European Union has been dull, methodical, and relentless.

The United Kingdom, on the other hand, has constantly sought to rely on bluster and bullying, but at each stage has been at a disadvantage.

Johnson and others prioritised playing to their political and media constituencies over engaging properly in a structured negotiation process.

They have received claps and cheers, but those claps and cheers have quickly faded and are becoming less loud and enthusiastic each time.

Process has been the friend of the European Union over Brexit, just as process is now the friend of Biden in the United States.

This is not to say that process was always going to favour the European Union (even though the Article 50 procedure is rigged against the departing Member State).

The United Kingdom can also be rather good at the politics of process, when its political leaders take process seriously.

But throughout Brexit, a distrust of ‘Remoaner’ expertise and experience meant that United Kingdom did not have the benefit of those who were the match to the procedural politicians of the European Union.

Think of Ivan Rogers, among many others.

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The populist nationalist authoritarian politics of Trump and Johnson, and of Bannon and Cummings, has shaken many liberals and constitutionalists.

Disapproval and tuttery has no effect; conventions are disregarded; inconvenient laws are circumvented and even sometimes broken.

It is akin to a wild animal loose in a village.

The unpredictability and noise and damage is unwelcome.

But, just as there are advantages for those who promote this destabilising approach to politics, there are also weaknesses.

And one of those weaknesses is that it cannot easily deal with process, if that process survives the attempts to disrupt it.

But.

The scary thing is when populist nationalist authoritarians master the political arts of process, rather than the lesser political arts of disruption.

We are (relatively) fortunate: Trump will soon no longer be in office; Bannon and Cummings are both no longer in central political positions; and Johnson now seems politically weak.

The next wave of populist nationalist authoritarianism in the United States and the United Kingdom may be harder to dislodge.

**

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The departure of Dominic Cummings

14th November 2020

Dominic Cummings is a genius at politics but was a failure in government about policy.

And this is because politics and policy are fundamentally different.

For example, politics can be linear while (good) policy will tend to be complex.

The approach of Cummings to the 2016 referendum and the 2019 general election was to be focused and unfussed about niceties and conventions and indeed the truth.

‘Take Back Control’

‘Get Brexit Done’

And so on, and many other statements, including those written on the side of a bus.

There are many things that one can and should object to in this electoral ruthlessness but it worked – twice.

Policy, on the other hand, is not (easily) amenable to such rush jobs.

Cummings believes, wrongly, that grand projects were easy, as long as you approached them with the right attitude.

On his blog, for example, he wrote about “the history of the classified programme to build ICBMs and the way in which George Mueller turned the failing NASA bureaucracy into an organisation that could put man on the moon. The heart of the paper is about the principles behind effective management of complex projects. These principles are relevant to Government, politics, and campaigns.” (Emphasis in original.)

He also published a series of posts on “the unrecognised simplicities of effective action“, including this 31 page paper.

Such stuff must have been interesting and exciting to write.

But the examples he used were not transferrable, even if those examples were accurately understood to begin with.

And when faced with two immense policy challenges in government: the departure of United Kingdom from the European Union and the coronavirus pandemic, the heady precedents of the Manhattan Project and putting men on the moon turned out not to be that useful.

Successful policy making is hard and it can rarely (if ever) be done just by making strident demands from the centre and upsetting (in both senses of the word) all those on who you depend to implement policy.

And, as Cummings has said many times, the current planning and public procurement regimes may be cumbersome and problematic – but disregarding them so as to make decisions and award contracts with no safeguards against abuse is no solution to those problems.

The news yesterday is that Cummings has left government, though it is not clear the extent to which he will carry on ‘working from home’.

He had everything a policy blogger could have ever have wanted credibility (after those two electoral victories), a place in the centre, direct access to the prime minister, and a large majority.

He even had immense policy challenges in Brexit and Covid to which he could apply and show off his policy prowess.

But it did not work out, and his substantive policy achievements were such that they could fit in a cardboard box.

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Remembering the departure of a government adviser in 1989 – the resignation of Sir Alan Walters and its consequences

13th November 2020

Once upon a time there was a controversial government adviser in Downing Street.

The controversy was not just about clashes of personalities, though that was certainly also present.

The controversy was in respect of competing visions of the UK and its place within the (then) European Economic Community.

On one hand the adviser, and the prime minister whom he was directly advising, believed that both economics and common sense meant that the United Kingdom should not participate in the exchange rate mechanism (ERM).

Sterling should float freely so as to find its own level, as one could not ‘buck the market’.

On the other hand the Treasury, headed by a chancellor who later (and ironically) was to become a Brexiter, wanted the United Kingdom to be part of the ERM – even though it was plain that the ERM was (and was intended to be) a prelude to monetary union.

(If memory serves, the proposed name of the new currency was still then ecu – the European Currency unit – rather than euro.)

And so what was on one level a clash of personalities – which was lapped up like milk by the newspapers of the time – was supercharged by it also being about a fundamental disagreement about UK and its place in the EEC (now European Union) project.

It was this split and row that, more than the then prime minster’s famous Bruges speech (which was actually quite mild in content) that perhaps marked the start of the divisions in the Conservative party that continued for another thirty years, up to and beyond Brexit.

The adviser was, of course, Sir Alan Walters, and the prime minister and chancellor were Margaret Thatcher and Nigel Lawson respectively; and the date was 1989.

Walters was forced to resign, as did Lawson, and – in a sequence of events which flowed from those two resignations, Thatcher herself resigned the following year.

At about this time United Kingdom also entered the ERM, despite the misgivings of Thatcher and her supporters.

And when, with Black Wednesday in 1992, those sceptical of the ERM believed themselves vindicated when the United Kingdom abruptly had to leave the mechanism.

That sense of vindication then fortified and informed what was then called ‘Euro-scepticism’ at each stage of the development of the EEC into the EU and beyond.

Here it was significant that the Maastricht treaty was negotiated, signed and ratified around the same time.

And so those who sought to ‘push’ UK into the ERM were seen by Euro-sceptics as the same as those who promoted the integration of EU more generally, and so Black Wednesday was seen as discrediting the wider European project.

Thatcher and Walters were seen by ‘Euro-sceptics’ as having been ‘proved right about Europe’.

(I recall all this, as I was a Euro-sceptic at the time too.)

Now, as I type this, there is another row in Downing Street about an adviser, which is in part about a clash of personalities and in part also about the basis of the United Kingdom’s relationship with the EEC/EU.

It may well be that the current drama will be inconsequential, but such dramas – as in 1989 – can also be momentous in their consequences and implications.

And this especially may be the case as the United Kingdom is only days away from ending the Brexit transition period with or without a deal and in the midst of a pandemic emergency.

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Politics versus policy, and why the approach of Johnson and Cummings to exercising power is going so badly

12th November 2020

The current government of the United Kingdom has a distinctive approach to politics, and it has a distinctive approach to policy.

In both cases the approach is associated with the government’s senior adviser Dominic Cummings and, to a lesser extent, the prime minister Boris Johnson.

The approach to politics has as a feature a disregard for the settled norms and practices of conventional politics: elections and referendums are there to be won, and it matters little about how that is done.

It is a focused and, in terms of both the 2016 referendum and the 2019 general election, a successful approach.

And because of this approach, they have power and their critics, however justified do not.

The approach to policy is similar, and can also be characterised as moving fast and breaking things.

There is no need for formal consultation exercises or procurement procedures, it is enough for there to just be central direction and directives.

And any policy will be formulated and implemented not by the traditional civil service in its traditional way, but by external hires and special advisers.

It is an approach which is not so much contrarian but indifferent to how policy was made and done previously.

But the lack of structure and the constant sense of rush comes at a cost, and because of that cost such an approach may be unsustainable in the medium to longer term.

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There are currently news reports about a resignation of a Downing Street adviser and of general dysfunction around the prime minister.

And this would be bad at any time.

It would be very bad if the United Kingdom faced just one major challenge – either a pandemic or the imminent departure from the European Union in practice (though technically the departure was back in January), with or without a deal.

But for this disarray to happen in the midst of a resurgent pandemic (and a second lockdown, that in an of itself will be widely devastating), and days away from the end of the Brexit transition period, is about as bad as politics and policy can be in peacetime.

At the base of the current predicament is a lack of seriousness about policy.

Whether it be the self-inflicted problem of Brexit or the force majeure of a pandemic, the government at its most senior level has not taken policy making and implementation seriously.

This is because policy is just regarded as politics as other means.

And, in turn, this comes down to populism – which can be described as the promotion of easy answers in exchange for electoral support.

Populism can succeed in elections and referendums, and it has recently done so, but it cannot deal with hard policy.

And therein is the contradiction forcing the current political chaos: what works in obtaining power can often be the very reason why being in power then goes so badly.

**

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The importance of Nigel Farage and other political hobgoblins

2nd November 2020

There are news reports that Nigel Farage and the Brexit Party are re-branding as the ‘Reform Party’ and will campaign on the basis of ‘lockdown scepticism’.

One immediate response of many will be to sneer at and deride him and his supporters.

Just as years ago he and his United Kingdom Independence Party were sneered at and derided.

But this approach is perhaps misguided.

Farage and other political populists should always be taken seriously.

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Farage is a political hobgoblin.

He appears where there are cracks between the government and the governed, as a purveyor of easy answers.

On the European Union issue, for example, generations of politicians in the United Kingdom failed to make any positive case for membership.

Often, instead, politicians from both major parties competed with each other to sound the most sceptical about the European Union and to secure the most opt-outs. 

Year on year, the crack was widening: there was no political engagement with the voters on the importance – or even the nature – of United Kingdom’s membership of the European Union.

And so, in 2016, when a government held a referendum on the question of membership, there was not the support in place to carry a Remain vote to victory.

The Leave campaign did not so much as win the Brexit referendum; it was more that Remain lost it – and they lost it because of 40 or more years of political inaction.

Farage and other opportunists merely exploited that political gap.

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Now there is another broad policy issue where there is a political gap.

The London government is proposing a lockdown for, in effect, the month of November so as to stymie the recent resurgence in Covid-19.

But for a lockdown to have effect, there needs to be be more than laws passed and subsidies offered.

A lockdown is an exercise in public mobilisation: a government is seeking a population to change its ways, to act significantly different for a significant period of time, and to do things (and not do things) that the population would not otherwise do.

Such a public mobilisation needs, in a word, leadership.

There needs to be a sense of legitimacy.

There needs to be an understanding of the evidence and the reasoning on which such a lockdown is based.

Laws – however ‘tough’ – are not enough.

It is not even a question of making laws clear, or resourcing their enforcement.

The broad behavioural change being sought cannot be brought about by coercion alone.

And the irony is that the current pro-Brexit government has become so complacent on the basis of the supposed ‘will of the people’ referendum mandate justifying what they do that they have disengaged with the people.

There is a disconnect.

Legitimacy is an ongoing process, but it can be lost as easily as it is to make a visit to Barnard Castle.

Clarity and transparency cannot co-exist with closed and politicised decision-making.

So there is another political gap.

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And when there are political gaps, the political hobgoblins appear.

They are an index of the failure of a government to properly explain a complex policy issue and to engage with the public.

The easy answers promoted by the political hobgoblins have little or no merit in themselves, but this does not matter.

The political hobgoblins do not care, for they thrive in the political gaps.

And that is why political populists should always be taken seriously, for they are an indication of political failure.

Political hobgoblins exist to warn us.

**

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The Anatomy of a Potential Constitutional Crisis – Part III – the Failure of the Gatekeepers

14th September 2020

For the current constitutional drama to have got as far as it has means that various ‘gatekeepers’ have either failed to perform their proper function or have been impotent.

By way of recap, the government of the United Kingdom is proposing to enact legislation that is deliberately intended to make it possible for ministers to make regulations that would break international and domestic law.

(See my posts here and here.)

That the legislation is before Parliament means that the process is fairly well advanced – for presenting a Bill to Parliament is about stage seven of a process, not stage one.

The first gatekeeper would have been the head of the government legal service – the Treasury Solicitor – and we know that this is the issue over which the Treasury Solicitor has resigned.

But that resignation has made no difference: the process has continued anyway.

A second gatekeeper would have been the Cabinet Secretary, who is the guardian of the Ministerial and Civil Service Codes.

Yet, somewhat irrationally and inexplicably, the Cabinet Secretary has determined that what the Treasury Solicitor has described as breaches of law are permissible under the Codes.

So much for the civil servant gatekeepers.

Now for the politicians.

The Attorney General, who is nominally the government’s chief legal adviser, is enthusiastic about this law-breaking.

The Lord Chancellor, whose oath of office contains a commitment to the Rule of Law, has said that there are breaches of law that are ‘unacceptable’ over which he would resign, but this is not (yet) one of them.

And on the floor of the House of Commons, the Northern Ireland Secretary spoke of ‘limited and specific’ breaches of law being permissible.

So the gatekeepers of the Attorney General, the Lord Chancellor and the Cabinet generally have also permitted the the process to continue.

These gatekeepers are all checks and balances within the executive, and they usually should stand in the way of any attempt by ministers to abuse or misuse the law.

And all have failed.

So we now move on to the formal legislative process of Parliament and, if the provisions are enacted, the Courts.

And it may well be that the legislature and the judiciary are able to restrain this rogue legislation making it possible for ministers to break the law by regulations (that is, by decree).

If so, that would be an example of a working constitution.

But for this proposal to have even got to this stage, parts of the constitution have not worked.

The constitution of the United Kingdom is not codified and is reliant on checks and balances in practice that have little force other than by convention.

Only at the margins should constitutional tensions be resolved by litigation.

But what happens when the conventions do not work or are flouted?

The current constitutional drama may ultimately show, through Parliament or the courts, how the constitution works – but so far it has also show how the constitution does not work.

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The Anatomy of a Potential Constitutional Crisis – Part II

13th September 2020

Yesterday this blog set out an ‘anatomy of a potential constitutional crisis’.

In that post, there were two extraordinary facts stated that went to the current constitutional drama being serious and also novel.

The first was that a cabinet minister said to the House of Commons that the deliberate intention of the government was to break the law.

The second was that the government’s senior legal official – the Treasury Solicitor – had resigned on this issue.

These two facts indicated – perhaps demonstrated – that the current situation was significantly different from previous threats from the government to disregard the law, which have often only been briefed to the weekend media.

There were third and fourth facts which also should have been listed.

The third fact is that the government has published a Bill with the explicit power of making regulations that would break international and domestic law.

The fourth fact is that the Cabinet Secretary has expressly sanctioned this intention of breaking the law as being compatible with the Codes for ministers and civil servants.

And today there is a fifth fact: the Lord Chancellor suggesting on television that a distinction can be made between ‘acceptable’ and ‘unacceptable’ breaches of the law.

*

None of this – yet – constitutes a constitutional crisis.

The crisis would occur if such intended law-breaking survived parliamentary scrutiny and judicial supervision.

If such intended law-breaking did not survive parliamentary scrutiny and judicial supervision that would be checks and balances working as they should in a constitution.

But that said, this is a very different type of constitutional drama to what has gone before in Brexit, and one perhaps has to go back to the unionist threats to disregard the law before 1914 to find a historical parallel.

Of course, all this may just be politics – and there is some planned (or hoped for) political manoeuvre that the government is to execute under cover of this drama.

Such a political game does not, however, justify direct threats by the government to break the law.

Perhaps this is just a passing row, and the government u-turns this week on this proposal.

But that the government risked a constitutional crisis (as well as self-trashing its reputation as a reliable party to international agreements) will linger.

There will be an impact.

And so even if this extraordinary situation is now brought quickly to a halt, what this has created cannot end well.

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The Anatomy of a Potential Constitutional Crisis – Part I

12th September 2020

 

This has been an eventful week for law and policy – and for breaches of law and for a lack of a policy.

The highlight – something so extraordinary and constitutionally spectacular that its implications are still sinking in – was a cabinet minister telling the House of Commons that the government of the United Kingdom was deliberately intending to break the law.

This was not a slip of the tongue.

Nor was it a rattle of a sabre, some insincere appeal to some political or media constituency.

No: law-breaking was now a considered government policy.

It was a quite remarkable moment.

*

That this was now a formal government position was then demonstrated by two other events.

First, the government’s senior legal official – the Treasury Solicitor – resigned on this issue (and my Financial Times post on this significant resignation is here).

Second, the government published a Bill which explicitly provides for a power for ministers to make regulations that would breach international and domestic law.

These two events show that the government’s proposal for law-breaking is not a sudden or improvised development.

A lot of time, effort and resources has gone into this.

The resignation of the Treasury Solicitor appears to have been after a number of Whitehall exchanges involving ministers, officials and government lawyers, as well as external counsel.

Draft legislation also does not appear from nowhere, and a published Bill is itself the result of a detailed and lengthy internal process, before it is ever presented to Parliament.

This proposal has been a long time in the making.

We all only got to know about it this week.

*

Any constitutional crisis – potential or otherwise – exists on two planes.

The first is the plane of high constitutional principle.

Here the most relevant constitutional principle is that of the Rule of Law.

(On this, I did a short exposition of the importance of the Rule of Law at Prospect and I also discussed it with human rights barrister Adam Wagner on his podcast.)

Put simply the principle here can be articulated as: the government is not above or beyond the law.

The government’s proposal may also raise (or will soon raise) constitutional issues such as the relationship between the two Houses of Parliament (if it is voted down by the Lords), the Irish border and the position of Northern Ireland, and the situation of the devolved administrations.

These constitutional matters are broad and could be relevant regardless of the detail of the proposals – whether the policy in question was about terrorism or agriculture.

*

The second plane is that of policy.

What is the policy objective that the government is seeking to achieve that, in turn, raises such constitutional concerns?

Here something does not make a great deal of obvious sense.

The purported concern is about the state aid regime on the island of Ireland after the end of the Brexit transition period on 31st December 2020.

I explain some of the detail of this purported concern on this video for the Financial Times.

There are two reasons why this being the cause of this potential constitutional crisis does not add up.

*

First, there are other ways the government could address their apparent concerns about state aid and Ireland following Brexit.

For example, the government could have a post-Brexit state aid policy that it could discuss with the European Union in a sensible and mature manner, and both sides could then agree how to deal with any conflicts with the withdrawal agreement and the Irish Protocol it contains.

But the United Kingdom government does not know what its state aid policy is and has said it will be 2021 before one is published.

So whatever the ultimate cause of this potential constitutional crisis, it is not (and cannot be) any concrete policy differences on state aid and Ireland – because the United Kingdom government does not (yet) have a concrete policy on state aid and Ireland.

*

Second, the provision in the withdrawal agreement which the government asserts is the problem – Article 10 of the Irish Protocol – is something this very government negotiated and agreed to itself.

The government would have known the effect of what it was agreeing to – before signature the government legal service would have explained to ministers all the provisions in the withdrawal agreement.

And not only did the current government agree the withdrawal agreement, it campaigned at the December 2019 general election on the basis of putting this ‘oven-ready’ agreement into effect.

And the withdrawal agreement was indeed swiftly passed into law by an Act in the days before the United Kingdom formally left the European Union on 31 January 2020.

In essence: the withdrawal agreement was something this government negotiated, signed, boasted of, campaigned on, received a mandate for, and passed into domestic law.

*

And now the same government wants to break that same withdrawal agreement, less than a year after it was agreed and signed.

The problems with this are, for anyone other than the most partisan supporters of the government, stark and serious.

No other country will take the United Kingdom seriously in any international agreements again.

No other country will care if the United Kingdom ever avers that international laws are breached.

It is a stunning self-trashing of the United Kingdom’s place in the world.

And domestically the predicament is much the same.

Who will take seriously the government’s insistence on abiding by the law if the government itself openly has law-breaking as public policy?

*

I love and enjoy watching and commenting on any constitutional drama

(You will get a sense of my sheer excitement on the Bunker podcast on this matter.)

But usually the constitutional drama makes some sort of sense.

Here there seems a deep mismatch – a disconnect – between the potential constitutional crisis and the underlying policy problem.

The United Kingdom does not (yet) have a post-Brexit state aid policy, and with open eyes it agreed to the Irish Protocol less than a year ago.

The problems, if any, with state aid in Ireland after 1 January 2021 do not require the United Kingdom government to propose and legislate for, in September 2020, a deliberate policy of law-breaking.

There is no rational explanation for what the government is doing.

And if there is no rational explanation then that leaves fanaticism, cynicism, conspiracy and/or idiocy.

Each of these are possible – either alone or in combination – but the lack of any genuine policy basis for risking a constitutional crisis, let alone forcing one, makes this a very strange constitutional drama.

*

This, however, is not yet a constitutional crisis.

There is every likelihood that the tensions here will be resolved by the government u-turning or being defeated during the Bill’s passage through Parliament.

If enacted, then the Courts may find a legal basis for limiting the use of the regulations made under the Act.

That would be the constitution working.

We are not at the ugly stage where a government minister is actually making a regulation that would break the law and there was no way of stopping this.

That would certainly be a crisis, by which I mean as serious and unpredictable situation where there is no obvious resolution – a constitutional contradiction rather than a tension.

A government deliberately breaking the law would create such a situation – and nobody can know what would happen next.

So this is still a potential constitutional crisis, not an actual one.

But it is an extraordinary and spectacular potential constitutional crisis.

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ps Title amended to add ‘Part I’ on 13 September 2020

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“Meddling” and the mindset of Trump and Johnson-Cummings

11th August 2020

President Trump says a lot of tosh but sometimes a word or phrase is telling.

“Meddling”

Here Trump goes on to make a partisan point about the Democrats “wanting and insisting on sending mail-in ballots, where there’s corruption all over the place”.

An opposition party in a democracy seeking to encourage the turnout for a vote is not, of course, sinister.

That is what political parties do in a democracy.

And if there is corruption or other irregularities then that is what electoral law is there to regulate. 

*

But this is to take his substantive point too seriously: the issue is the ease with which he adopted the word “meddling” from the question and employed it in his answer against the party challenging him in November’s election.

“Meddling”

The impression he gave is that he considered the legitimate political activity of a political party as a hindrance – a wrongful intervention in the natural order of things.

And this impression is similar to the impression given by the Johnson-Cummings government in the United Kingdom in respect of constitutional checks and balances on the power of the executive.

*

Before the general election, when Johnson-Cummings did not have a majority in parliament there was the attempt to bypass the legislature with the (unlawful) use of the prorogation.

After the election, now they have a majority, the main attacks are on the independent judiciary and the impartial civil service.

The impulse is always the same: the desire to remove formal impediments.

There often seems to be no greater purpose – no particular policy to be driven through – than unrestricted executive power as an end in and of itself.

The objective is the elimination of anyone in a structural position to say ‘no’ or even ‘please think about this carefully’.

*

By framing any such restraints as “meddling” the executive-minded, such as Trump or Johnson-Cummings, are doing three things.

First, they are seeking easy claps and cheers and nod-alongs from those in politics and the media who should know better, as well as from voters generally.

Second, they are signalling that they consider any form of opposition to them getting their way as inherently illegitimate – and so that there are no constitutional or democratic principles of more import than the government just getting its way.

And third, they are converting basic constitutional or democratic principles into partisan devices – and so those who support and defend certain political fundamental norms (regardless of party) become part of a perceived opposition.

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The worry is that they can and will get away with this for as long as possible.

There are, of course, often short-term political advantages to be had for the knave or the fool by undermining any political and constitutional system.

And one hopes that the system would be self-correcting, and that basic constitutional and democratic norms will somehow reassert themselves.

But what happens when, as now seems to be the case in the United Kingdom, such opportunism and cynicism become the ongoing policy of the government?

Will basic constitutional and democratic norms reassert themselves this time?

Or will this ‘executive power project’ carry on and on?

And, if so, wouldn’t that be genuinely ‘meddlesome’ behaviour?

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The current government is an exercise in power without policy

17th June 2020

There were two political events yesterday that were indicative of the key weaknesses of the current government of the United Kingdom.

The first event was the u-turn on free school meals this summer – a shift forced by footballer Marcus Rashford’s public pressure, as well as it being something that plainly should be done.

The execution of this u-turn by the government had all the dignity of a nutmegged defender.

The second event was the announcement that the Department for International Development is to be folded into the Foreign Office.

There is no good reason for this shift, although there are many bad ones.

The folding of Department for International Development into the Foreign Office follows the merger of Number 10 and Number 11 Downing Street and the Cabinet Office swallowing the Department for Exiting the European Union, and so if this trend continues we will eventually just have a few mega-departments under tighter Prime Ministerial (and his adviser’s) direction.

The weaknesses that both events indicate are that this government is concerned with power but not policy.

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By ‘policy’ I mean a seriousness about getting things done.

Policy is hard: it is more than just legislative changes, or deciding administrative or budgetary priorities.

And policy is certainly more than a mere press release or a media strategy generally.

Policy is about combining many things so that certain outcomes can be be achieved which otherwise might not be achieved, but for that policy.

This is not a party political point: Aneurin Bevan establishing the National Health Service and Norman Tebbit putting in place trade union reform are both good case studies of carrying through policy.

But this government appears not to have a grasp of policy.

This seems to be the case in all areas, not just those which come to light from time to time in the course of political events.

It is just that those other areas are less obvious or, in the case of Brexit, shielded by ideological commitment.

This government’s approach to policy is flimsy everywhere.

This in turn explains why this government – even with its eighty majority in the House of Commons – is blown off course so easily.

Sometimes the changes happen at or after prime minister’s questions, but this week’s u-turn came before hand.

And the positive policy announcements that are made – such as with the International Development department – seem to be either for media and political consumption or to provide cover for tightening central political control, or both.

None of this is surprising: key members of the government approach problems as if what is needed is to compose a rousing 1200 word newspaper column or to make some gesture that ‘plays well’ with voters, or to shut down any autonomy or checks and balances within the state.

An approach that is good for obtaining (and maybe retaining) power but does not really provide anything about how to use that power once you have got it.

The government has no solid notion of what it wants to achieve overall, on Brexit or anything else.

It just has a notion of how to play to its audience and to increase power.

Perhaps the flimsiness is a good thing: perhaps the ideological commitments of those in and around government mean that we should be grateful that those commitments are not – yet – reflected in hard, sustainable policy.

But this policy flimsiness still makes a difference: on Brexit as well as on other matters, the United Kingdom is, like a latter-day Withnail and I, drifting further into the arena of the unwell.

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Thank you for visiting this independent law and policy blog.

Please support the free-to-read and independent legal and policy commentary on this blog and my Twitter account either by the Paypal box above or by becoming a Patreon subscriber.

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Comments are welcome but pre-moderated, and so comments will not be published if irksome.